Description

The trust law of Anglo-American common law has the function of filling the gaps of common law remedies through equity. The concept of equity does not exist in the civil law system. How can trust law exist without equity? This depends to a large extent on whether the trust system can be integrated with the existing parts of the civil law system, in particular with the systems of property rights, creditors’ rights and inheritance, which have been the basic content of property law in civil law systems since Roman law. It applies to the organic link between them. This includes but is not limited to the conflict between the so-called “dual ownership” in Anglo-American law and the “one property, one right” principle in property law of civil law, the conflict between the interests of the trust settlor and his creditors that may arise from the establishment of a trust, and the conflict between the trust beneficiary and the heirs of the settlor of a testamentary trust, and so on. There are many “legal tools” in civil law that can resolve these conflicts, and thus trusts, the so-called “floating oil in the private law system”, can be better integrated into the private law system with the Civil Code. The “Macao Trust Law” takes effect on December 1, 2022, becoming the latest written trust law in the civil law system. From then on, the practice of Macao’s trust law system will shift from the previous legislative approach to the interpretation approach. The most important thing in the interpretation and application of the Trust Law is to properly handle the connection and application relationship with the Macao Civil Law.